Opinion
C088053
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PAUL DECOSTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE007803)
After a jury found defendant guilty of a felony, the trial court accepted his admission to the truth of a prior conviction resulting in a longer sentence of imprisonment. Defendant contends the prior conviction finding must be reversed, because the record does not demonstrate his admission was knowing and voluntary. We conclude this contention is forfeited and affirm the prior conviction finding, but we remand the matter to the trial court to allow it to exercise its discretion whether to strike the five-year serious felony enhancement.
BACKGROUND
The underlying facts are irrelevant to the issues raised on appeal. Simply put, a jury found defendant guilty of first degree residential burglary. (Pen. Code, § 459.) Immediately after that verdict was announced, defendant waived trial on allegations in the information that he suffered a prior serious felony conviction, for which he served time in state prison.
Undesignated statutory references are to the Penal Code.
At a sentencing hearing a little over a month later, the trial court asked the parties whether defendant was "prepared to stipulate to the truth of the [prior conviction] allegation, or whether . . . the People [we]re going to introduce" evidence of it. Counsel for defendant said: "We'll stipulate, Your Honor." The trial court replied: "Is that right, Mr. Decoster? You're willing to stipulate to the truth of that prior conviction?" Defendant responded: "Correct."
The trial court accepted the admission, then sentenced defendant to eight years for the burglary (the middle term of four years, doubled because of the prior "strike" felony, pursuant to § 667, subds. (b)-(i)) and a consecutive five-year term for the prior serious felony conviction (pursuant to § 667, subd. (a)), with a stayed one-year prior prison term enhancement (§ 667.5, subd. (b)).
DISCUSSION
The admission
Defendant's first contention on appeal is that he was never advised his admission exposed him to more years of imprisonment, an omission which requires reversal of the prior conviction finding and sentence. Admission to a prior serious felony conviction allegation must be knowing and voluntary. (People v. Mosby (2004) 33 Cal.4th 353, 360.) The People argue this claim is forfeited on appeal, because defendant did not raise it with the trial court. Anticipating this argument, defendant cites People v. Cross (2015) 61 Cal.4th 164 (Cross), for the proposition the claim is not forfeited.
Although a trial court is constitutionally mandated to advise a defendant who is pleading guilty of the constitutional rights being waived, advisement of the penal consequences of the guilty plea is a judicial rule of procedure, not a constitutional mandate. (People v. Mosby, supra, 33 Cal.4th at pp. 359-360.) Failure to object in the trial court that the trial court did not advise the defendant of constitutional rights does not forfeit the claim on appeal (People v. Trujillo (2015) 60 Cal.4th 850, 859), but forfeiture applies to failure to advise of penal consequences. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, disapproved on another ground in People v. Villalobos (2012) 54 Cal.4th 177, 181-182.)
Because defendant did not object in the trial court to nonadvisement of the penal consequences of his admission to the prior conviction, he forfeited that issue and may not raise it on appeal. Cross stands for the proposition that an appellate claim that the trial court failed to advise of the constitutional right to trial by jury is not forfeited on appeal by failure to object in the trial court. (Cross, supra, 61 Cal.4th at p. 173.) That holding does not apply here, because failure to advise on penal consequences does not implicate constitutional rights.
Defendant maintains if we find his claim forfeited, we must consider it nevertheless, because of ineffective assistance of trial counsel.
We reject this contention, because the record is silent regarding the reason for trial counsel's actions or omissions, and we cannot say that all the relevant facts have been developed. (People v. Ledesma (2006) 39 Cal.4th 641, 746 ["an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 ["[a]n appellate court should not . . . brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed"].)
The five-year serious felony enhancement
Defendant's second argument on appeal is that we should remand to permit the trial court to exercise its discretion whether to strike the five-year serious felony enhancement. The People concede. We agree with the parties.
Defendant's sentence includes a five-year prior serious felony enhancement pursuant to section 667, subdivision (a). At the time defendant was sentenced, the court had no discretion to strike such an enhancement.
Senate Bill No. 1393 went into effect on January 1, 2019, and amends sections 667, subdivision (a) (Stats. 2018, ch. 423, § 64), and 1385, subdivision (b) (Stats. 2018, ch. 1013, § 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes.
The amendments apply retroactively to his case, which is not yet final. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472-473.)
Because nothing in the record indicates the trial court intended to impose the highest possible term or otherwise clearly indicates it would not exercise its discretion to strike, remand is appropriate to allow the trial court to exercise its discretion as to whether to strike defendant's prior serious felony enhancement.
The prior prison term enhancement
Defendant's final argument is that the trial court should have stricken, not imposed and stayed, the one-year prior prison term enhancement, because it was based on the same conviction for which the trial court imposed the five-year serious felony enhancement. The People concede the error, but argue we should not strike the enhancement, but remand to permit the trial court to reconsider this sentencing issue when exercising its discretion under Senate Bill No. 1393.
In People v. Jones (1993) 5 Cal.4th 1142, 1150, the California Supreme Court ruled, as a matter of statutory construction, "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." The correct course for the trial court is to strike the enhancement not imposed. (Jones, at p. 1153.) The state's high court recently reaffirmed those principles. (People v. Anderson (2018) 5 Cal.5th 372, 426.)
We agree the trial court should have stricken the section 667.5, subdivision (b) prior prison term enhancement because it was based on the same conviction the section 667, subdivision (a) five-year serious felony enhancement was based on. But we will not strike the enhancement now, because we agree with the People the matter should be remanded to permit the trial court to craft the sentence that best serves the interests of justice, in light of the trial court's discretion under Senate Bill No. 1393.
DISPOSITION
The cause is remanded so the trial court may consider exercising its discretion under Senate Bill No. 1393, and correct the erroneous stay of the prior prison term enhancement. In all other respects, the judgment is affirmed. The clerk of the trial court is ordered to send a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.